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Cappelluti v. City of Union City Planning Board

2006 WL 1543055 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; PLANNING BOARD; RECUSAL A planning board action may be set aside by a reviewing court if a recused board member participates in any manner or aspect of the application process.

A landowner with easement rights to an adjoining parcel of land on which a developer wished to build two three-family homes objected to the land use application and variances sought by the developer before the governing municipality’s planning board. Prior to any public hearing, the landowner requested that a commissioner of the governing body of the municipality, and also a board member, recuse himself from the proceedings. Without an argument, the commissioner recused himself from further participation in the matter.

Specifically, the landowner worried about structural deficiencies in the sewer system on the adjoining land that could cause water damage to his residence because of the proposed development. The planning board was satisfied, however, that the developer could and would absorb the cost of a new sewage system for the landowner and allow the landowner the same existing easement rights. Additionally, the board appeared generally satisfied by expert testimony that the benefits of the development would outweigh any detriments and so would be useful to the community. At the conclusion of the public comment period, the board chairman moved for adoption and approval of the application, contingent upon the sewer stipulations of the developer. The board members voted seven in the affirmative with one abstention. After that vote, the recused board member cast an affirmative vote on the application. At the time, the landowner did not object.

The landowner filed a complaint in a lower court challenging the approval. The lower court dismissed the complaint by motion. On appeal, the landowner argued that the vote was tainted by the recused board member’s participation.

Even though the recused board member did not appear to participate in the board’s proceedings in any substantive manner and only voted after seven other members voted to approve the application, the Appellate Division strictly interpreted the rule that any participation by a board member after his or her recusal merits reversal. Such a holding comported with the local municipality’s resolution that whenever any member shall disqualify himself from acting on a particular matter, he or she shall not continue to sit with the board in the hearing of such matter nor participate in any discussion or decision relating to the matter.

Additionally, the Court held that, when a new hearing is held, the board had to make specific findings of positive and negative criteria that would be clearly stated in any approval resolution. It noted that the board’s original approval resolution failed to specifically mention or analyze the positive or negative criteria that were part of its approval decision in accordance with statutory law and zoning ordinances.

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